United States Constitution

However, instead of the Privileges or Immunities Clause, the Supreme Court has looked to the Due Process Clause to guarantee new implied fundamental rights and to house the earlier amendments.

In 1873, in a series of cases together known as The Slaughter-House Cases, the Court essentially gutted the Privileges or Immunities Clause and relegated it to a very limited function. In these cases, the city of New Orleans had essentially given a monopoly to certain meat slaughterhouses; and other slaughterhouses argued that the Privileges or Immunities Clause granted them certain rights to be free to operate their establishments freely. The Court, however, held that this clause did nothing but confer to rights which citizens of the United States as a whole are entitled to, such as access “access to ports and navigable waterways, the ability to run for federal office, and to be protected while on the high seas.” The Court explicitly rejected the notion that this clause had anything to do with civil rights.

These rights being as niche as they are, essentially rendered the Privileges or Immunities Clause a nullity.

The more noteworthy stirring of the Privileges or Immunities Clause, however, took place even more recently, in McDonald v. Chicago (2010). There, the Court was examining whether the 2nd Amendment should apply to the states through the 14th Amendment. The party arguing that it should apply to the states used both the Privileges or Immunities Clause and the Due Process Clause to make that argument. Thought the Court did find that the 2nd Amendment was applicable to the states, it did so only using the Due Process Clause.

Justice Alito, however, writing for the majority, did engage in a lengthy discussion of the history of the Privileges or Immunities Clause, beginning with the The Slaughter-House Cases (1873). But he concluded, as mentioned, that “We see no need to reconsider that interpretation [of using the Due Process Clause] here. For many decades, the question of the rights protected by the Fourteenth Amendment against state infringement has been analyzed under the Due Process Clause of that Amendment and not under the Privileges or Immunities Clause. We therefore decline to disturb the Slaughter-House holding.”

However, the decision in McDonald was 5 to 4, with several separate dissents and concurrences. Justice Thomas, in his concurrence, expressly signed on to the judgment of the Court and not its analysis. Instead, Justice Thomas rejected the Court’s historical interpretation of the Privileges or Immunities Clause. He sought to incorporate the Bill of Rights into the 14th Amendment, not through the Due Process Clause, but through the Privileges or Immunities Clause. Rejecting the Slaughter-House approach, Justice Thomas wrote, “I cannot agree that [the 2nd Amendment] is enforceable against the States through a clause that speaks only to “process.” Instead, the right to keep and bear arms is a privilege of American citizenship that applies to the States through the Fourteenth Amendment’s Privileges or Immunities Clause.”

This may yet be a minority opinion and not binding on the Supreme Court or the lower courts, but having been expressed by a Justice, it is no longer an opinion that is expressed by academics alone.